Laxman Damodhar Zoting Vs. Shamrao Vishwanath Jawade - Court Judgment

H.K. Chainani, C.J.

1. The petitioner and opponents Nos. 1 to 3 stood as candidates for election from ward No. 2 to the Gram Panchayat of mouza Khadki. Two members were to be elected from this ward and one of the two seats was reserved for women. After the election, the petitioner and opponent No. 2 were declared elected. Subsequently, opponent No. 1 filed an election petition challenging the election of the petitioner. The learned Civil Judge, who heard the petition, found that 13 voting papers, which bore more than one stamp mark against the name of a candidate, had been wrongly rejected, as in his opinion the manner of stamping did not suggest that the voter in each of these cases intended to record more than one vote for the same candidate. His finding on this point has not been challenged before Rs. The learned Judge also found that one voting paper bearing No. 10 which had been issued to a voter from ward No. 2 had been found in the ballot box pertaining to ward No. 1. This voting paper had been rejected by the Returning Officer because it was not found in the ballot box for ward No. 2. It was admitted before the learned Judge that the ballot boxes for both the wards Nos. 1 and. 2 had been kept in the same room. As the voting paper related to the same election, the learned Judge was of the opinion that this voting paper could not be rejected and it should be considered in counting the votes. The votes recorded on this voting paper were in favour of opponents Nos. 1 and 3. As a result of the recounting of the votes, including the votes recorded on this voting paper, the petitioner and opponent No. 1 were found to have polled equal number of votes. The learned Judge then drew lots and declared opponent No. 1 to be duly elected. He set aside the election of the petitioner.

2. Mr. Gadkari, who appears on behalf of the, petitioner, has contended that the view taken by the learned Judge in regard to the voting paper No. 10 referred to above is wrong. It seems to us that his contention on this point must be accepted. Mr. Gadkari referred to Rule 24 of the Bombay Village Panchayat Election Rules, 1959, which states that it shall be the duty of the presiding and polling officers and their assistants to see that votes are recorded with absolute secrecy, that only such persons as may be admitted to the polling booth under the rules are admitted thereto and that persons who have recorded their votes or against whom objections have been heard and upheld leave immediately. In the present case, it appears that the ballot boxes for both. the wards Nos. 1 and 2 had been kept in the same room. But in para. 3 of the petition, it has been stated that there were separate booths and separate polling officers for each of these wards. That statement in the petition leas not been denied. Having regard to the provisions of Rule 24, it has been urged by Mr. Gadkari that the voter, to whom ballot paper No. 10 was issued, could not have himself gone to the wrong booth, i.e. to the booth for ward No. 1, and put the voting paper in the ballot box of that ward. It is, however, not necessary to speculate how this voting paper came to be placed in the ballot box for ward No. 1, because the election rules clearly contemplate that in counting the votes for any constituency, only the voting papers contained in the ballot boxes pertaining to that constituency should be taken into consideration.

3. Sub-rule (1) of Rule 19 states that on the morning of the polling day, the presiding officers shall each be supplied with a ballot box with an aperture for receipt of voting papers, a copy of the sections of voters' list pertaining to their polling stations and a bound book or books of voting papers serially numbered in foil and counterfoils at the rate of one voting paper for each voter in the voters' list. Each polling station is, therefore, to be provided with a separate ballot box, with a copy of the section of voters' list pertaining- to that polling station and a separate bound book or books of voting papers serially numbered at the rate of one voting paper for each voter in the voters' list. Separate voting papers are, therefore, provided for use at each polling station. Rule 22 states that every voter desirous of recording his vote shall attend for the purpose at the polling station for the ward for which he is entered in the voters' list. Clause (v) in Rule 23 provides that the voter shall, after making his mark on the voting paper, fold the paper and insert the folded voting paper into the ballot box and without undue delay leave the polling room. It has been urged by Mr. Deshpande that these provisions are only directory and that failure to comply with them would not make the voting paper invalid- There might perhaps be some force in the argument, so far as the folding of the voting paper is concerned. But it seems to us to be an essential requirement of this rule that the voting paper must be put in the ballot box, for otherwise the secrecy of the voting cannot be maintained. It is also clearly implied in this rule that the voting paper must be put in the ballot box kept in the particular polling room. Sub-rule (1) of Rule 30 states that the presiding officer shall, after the close of the poll, in the presence of any candidate or representative of a candidate, if present, seal the aperture of the ballot boxes and seal with his own seal and the seal of any candidate or representative, who may desire to affix his seal, each ballot box in use at the polling station. It is obvious that the candidate, who can be allowed to affix his own seal on a ballot box, must be a candidate from that particular constituency. Rule 32 provides for the inspection of the ballot boxes by the candidates and their agents, for the Returning Officer's satisfying himself that none of the boxes has in fact been tampered with, for the opening of the ballot boxes and taking out and counting the ballot papers contained therein and for the rejection of invalid voting papers. These; rules suggest that in respect of votes recorded at a polling station, only the ballot papers contained in the ballot box kept at that polling station are to be taken into consideration. Rule 33 mentions the grounds on which a ballot paper contained in a ballot box shall be rejected. This rule provides that a ballot paper contained in a ballot box shall be rejected if

(b) it bears any serial number... different from the serial numbers... authorised for use at the polling station at which the ballot box in which it was found, was used.

4. A ballot paper pertaining to any polling' station must, therefore, be rejected if it is found in the ballot box of another polling station. It follows that a ballot paper contained in a ballot box for one constituency cannot be considered while counting votes of candidates from another constituency.

5. The voting paper No. 10 in this case was not found in the ballot box of ward No. 2. It could not, therefore, have been taken into consideration in counting the votes of candidates, who had stood for election from ward No. 2. The view taken by the learned Civil Judge on this point is, therefore, not correct.

6. If this voting paper is excluded as it must be, the position will be that the valid votes recorded in favour of the petitioner will be 33, while those recorded in favour of the opponent will be 32. The petition, therefore, succeeds. We set aside the order made by the Civil Judge setting aside the election of the petitioner and confirm the original declaration declaring the petitioner to be duly elected from ward No. 2. The petitioner to get his costs from opponent No. 1.